Strange bedfellows oppose the filibuster
President Donald Trump and Sen. Elizabeth Warren (D-Mass.) agree on one thing: the elimination of the filibuster in the Senate. And now former Democratic Senate Majority Leader Harry Reid has lent his weight to that demand.
Progressive groups, commentators and some Democratic presidential candidates are pushing this view. They argue that even if a Democratic president is elected in 2020 and the party controls the Congress, the Democratic agenda will be unattainable if the filibuster remains in place. This is because a “cloture motion” necessary to cut off a filibuster requires 60 votes under most circumstances and Senate majorities rarely include 60 senators.
Warren has said, “When Democrats next have power, we should be bold… we should get rid of the filibuster.” Recently, Reid has written, “The future of our country is sacrificed at the altar of the filibuster… I am now calling on the Senate to abolish the filibuster in all its forms.”
President Trump has repeatedly demanded an end to the filibuster. In December, in pursuit of funding for a border wall, he pressed Senate Majority Leader Mitch McConnell (R-Ky.) to use the “nuclear option,” a controversial parliamentary ploy to eliminate, by simple majority vote, the filibuster on all legislative matters. Trump tweeted, “Mitch, use the Nuclear Option and get it done! Our Country is counting on you!”
Such bipartisan resolve might be welcome if the objective were not so misguided. It is the 60-vote supermajority requirement which makes the filibuster such a potent driver of compromise. In order to reach 60 votes, it is necessary to seek some support from the opposite side of the aisle. This requires communication, negotiation, and compromise. This is in the DNA of the Senate.
The foundational pillars unique to the Senate are the protection of minority rights to speak and to offer amendments. In recent years, because of the intense partisan polarization, the filibuster has been frequently abused. The solution is not to rewire the Senate rules. Eliminating the filibuster would, in fact, exacerbate the polarization.
If the nuclear option were employed to end all filibusters, Senate majorities would do what majorities do: take full control. The Senate would become another House of Representatives. In the House, debate is severely limited and amendments are often prohibited. For the Senate, this would hardly be a formula for wise public policy.
Reid himself in a 2008 interview with former Majority Leader Tom Daschle on C-SPAN argued, “We would in effect have a unicameral legislature where a simple majority would determine whatever happens…The Senate was set up to be different that was the genius, the vision of our Founding Fathers…” Asked by Daschle if there was any likelihood of the nuclear option being considered again, Reid responded, “As long as I am the leader the answer is no. I think we should just forget that… that is a black chapter in the history of the Senate… Because I really do believe it will ruin our country…” Daschle added, “Your characterization in my view is exactly right. This could have changed the character of the Senate forever.”
It is short-sighted to believe that either party with narrow control of the White House and Congress could or should enact major sweeping legislation. Such partisan verdicts will lead to years of conflict over the implementation of those policies. The experience with Obamacare should be a cautionary tale.
Widely popular major legislative landmarks such as Social Security in 1935, Medicare in 1965, the Clean Air Act Amendments in 1990, the 2003 Medicare Prescription Drug bill, the 1972 Clean Water Act, the 1964 Civil Rights Act and the 1965 Voting Rights Act all were passed with large bipartisan majorities overcoming early opposition by the minority in the Senate. Each has since stood the test of time.
Supporters of the progressive agenda tempted to weaponize procedure and twist the Senate’s rules to accomplish their objectives, should think about what a re-elected President Donald Trump with a new House majority and a reaffirmed Senate majority might seek to do if the filibuster no longer existed. In fact, Democrats and Republicans alike should think about the list of “horribles” which the opposing party might enact, including the specter of one-party control of the entire federal budget.
In November 2013, Democrats used the nuclear option to sweep away the filibuster for most judicial nominations. Five years later, Republicans used that precedent to eliminate the filibuster on Supreme Court nominations. The unintended consequences are clear. The minority left without any leverage could not effectively oppose Supreme Court nominees they considered too extreme. The majority party has been able to confirm record numbers of nominees for the critical Circuit Courts on a rapid conveyer belt. Presidents no longer are required to consider the need for some level of minority support to confirm judges. The result is greater partisanship on the courts.
Lyndon Johnson — who broke the back of the southern filibuster of civil rights legislation and who is viewed as perhaps the most effective Senate majority leader in history — argued: “If I should have the opportunity to send into the countries behind the Iron Curtain one freedom and only one . . . I would send to those nations the right of unlimited debate in their legislative chambers . . . If we now, in haste and irritation, shut off this freedom, we shall be cutting off the most vital safeguard which minorities possess against the tyranny of momentary majorities.”
In this period when American democracy itself seems under repeated assault, we cannot afford to undermine the historical role of the Senate.
Richard A. Arenberg is a visiting professor at Brown University and a former senior aide to Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years. He is the author of the award-winning “Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress” and co-author of “Defending the Filibuster: The Soul of the Senate.” You can follow him on Twitter @richarenberg
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